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Embro v. Marsico

United States District Court, S.D. New York

September 30, 2014

RALF EMBRO, Plaintiff,
v.
MARY JEAN MARSICO and ROCKLAND COUNTY BOARD OF COOPERATIVE EDUCATIONAL SERVICES, Defendants.

OPINION AND ORDER

NELSON S. ROMN, District Judge.

Plaintiff, Ralf Embro ("Plaintiff") commenced the instant action against Defendant Mary Jean Marsico ("Marsico"), District Superintendent for the Rockland County Board of Cooperative Educational Services ("BOCES"). The operative complaint is an amended complaint filed April 11, 2013 (dkt. no. 9). Although the amended complaint named only Marsico as a defendant, the Court thereafter construed the complaint to assert claims against both Marsico and BOCES in light of Plaintiff's then- pro se status and clear intention to seek relief from both defendants.

Plaintiff asserts (1) gender discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 ("Title VII"); (2) disability discrimination and retaliation claims under the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117 (the "ADA"); and (3) gender and disability discrimination and retaliation claims under the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law §§ 290-97.

Defendants now jointly move to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, Rule 56. This Court grants the motion, and hereby dismisses all claims pursuant to Rule 12(b)(6), for the reasons stated below.[1]

I. AMENDED COMPLAINT

The amended complaint contains a summary of facts and also incorporates by reference and attaches factual assertions made before the Equal Employment Opportunity Commission ("EEOC") in 2012. Reading these materials together, in sum, Plaintiff alleges that BOCES hired him as a special education teacher in September 2000, and that from September 2001 through March 2011, Defendants discriminated against Plaintiff on account of disabilities resulting from military service. See Amended Complaint ("Compl.") at 3. Plaintiff further alleges that BOCES was "dominated by women administrators who conspired and perjured themselves in order to make it possible for them to fire" Plaintiff. Id. The gravamen of Plaintiff's complaint appears to be that his March 13, 2011 termination as a tenured BOCES teacher was discriminatory and retaliatory in violation of federal and state laws protecting against such action if taken on the basis of disability or gender. Id. at 6.

As outlined to the EEOC in 2012, Plaintiff contends that after his 2000 hire as a special education teacher, his military status was reactivated. Id. at 5. He apparently participated in Operation Iraqi Freedom between February 7, 2003 and January 24, 2004. Id. Plaintiff alleges that following that term of service, on March 12, 2004, he was diagnosed with a brain injury and post-traumatic stress syndrome. Id. On April 20, 2004, BOCES purportedly told him to return to work and also denied him tenure at that time because of his military service. Id. Thereafter, and specifically, during calendar year 2007, either union or school district officials questioned Plaintiff about his need to take time off for medical visits. Id. In mid- or late 2007, when Plaintiff declined to support with medical records his need for time off, BOCES transferred Plaintiff to a different school, which Plaintiff contends "was clearly retaliation." Id.

Public records show that on July 19, 2007, Plaintiff filed a complaint before the New York State Division of Human Rights ("SDHR") and the EEOC, which alleged that the transfer to a different school was disability-based discrimination. See Affidavit of Gregg T. Johnson ("Johnson Aff.") (dkt. no. 25), Ex. F. That complaint was referred to an SDHR administrative law judge ("ALJ"), who, on June 3, 2009, recommended dismissal of all claims. Id. at Ex. D. On February 5, 2010, the Commissioner of the SDHR adopted the ALJ's recommendation and dismissed all claims. Id. at Ex. G.

Plaintiff contends here, in the instant action, that in August 2008, after his compelled transfer, he reported Defendant Marsico for purportedly changing and altering students' grades. Compl. at 5. Plaintiff contends that in September 2008, he was transferred back to his original school where he suffered various forms of discrimination and harassment. Id. at 6. In March 2009, for example, a school administrator allegedly behaved aggressively toward him and purposely aggravated his post-traumatic stress syndrome. See id.

Following his "whistleblower" report regarding Marsico and this harassment, BOCES brought disciplinary charges against Plaintiff pursuant to New York Education Law § 3020, thereby initiating a statutory protocol to remove Plaintiff as a then-tenured teacher. Id. Ultimately, BOCES terminated Plaintiff on March 13, 2011. Id. [2]

On January 12, 2012, Plaintiff filed a second EEOC complaint (the first being the 2007 complaint), which alleged disability-based discrimination, without any Title VII claim or reference to gender-based discrimination. See Johnson Aff. at Ex. A; Compl. 5-7. On March 9, 2012, the EEOC dismissed Plaintiff's complaint and issued Plaintiff a "Right to Sue" letter. Plaintiff concedes that he received the Right to Sue letter on March 9, 2012. Compl. at 4. Plaintiff commenced the instant action on December 10, 2012.

II. MOTION TO DISMISS STANDARD

On a motion to dismiss for "failure to state a claim upon which relief can be granted, " Fed.R.Civ.P. 12(b)(6), dismissal is proper unless the complaint "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). "Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679.

When there are well-pleaded factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Ultimately, determining whether a complaint states a facially plausible claim upon which relief may be granted must be ...


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